Citation Nr: 0213805
Decision Date: 10/07/02 Archive Date: 10/10/02
DOCKET NO. 00-15 712 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Phoenix,
Arizona
THE ISSUE
Entitlement to service connection for post-traumatic stress
disorder.
(The issue of entitlement to an increased evaluation for
chronic low back strain, currently evaluated as 20 percent
disabling, will be the subject of a later decision).
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
T. Francesca Craft, Associate Counsel
INTRODUCTION
The veteran served on active duty from December 1971 to April
1973.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from an April 2000 rating decision from the
Department of Veterans Affairs (VA) regional office (RO) in
Phoenix, Arizona.
The Board is undertaking additional development on the issue
of entitlement to an increased evaluation for chronic low
back strain, currently evaluated as 20 percent disabling,
pursuant to authority granted by 67 Fed. Reg. 3,099, 3,104
(Jan. 23, 2002) (to be codified at 38 C.F.R. § 19.9(a)(2)).
When it is completed, the Board will provide notice of the
development as required by Rule of Practice 903. 67 Fed.
Reg. at 3,105 (to be codified at 38 C.F.R. § 20.903). After
giving the notice and reviewing your response to the notice,
the Board will prepare a separate decision addressing this
issue.
FINDINGS OF FACT
1. The VA has fulfilled its duty to assist the veteran in
the development of all facts pertinent to his claim.
2. The RO has obtained all available, relevant evidence
necessary for an equitable disposition of the veteran's
appeal.
3. Post-traumatic stress disorder was not shown in service;
the evidence submitted in support of the claim for service
connection for PTSD does not establish a current disability
of PTSD that is related to service.
CONCLUSION OF LAW
Post-traumatic stress disorder was not incurred in or
aggravated by active service. 38 U.S.C.A. §§ 1110, 1131
(West 1991 & Supp. 2001); 38 C.F.R. §§ 3.303, 3.304 (2001).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Background
A. Duty to Assist
The Veterans Claims Assistance Act of 2000 (hereafter VCAA),
now codified at 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West
Supp. 2002), was recently enacted. The VCAA contains
extensive provisions modifying the adjudication of all
pending claims. See Karnas v. Derwinski, 1 Vet. App. 308
(1991); VAOPGCPREC 11-00. Among other things, the new law
imposes on VA expanded duties to assist and notify a claimant
seeking VA benefits. VA issued regulations to implement the
VCAA in August 2001. 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to
be codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159
and 3.326(a)). These regulations state that the provisions
merely implement the VCAA and do not provide any additional
rights. 66 Fed. Reg. at 45,629. Accordingly, in general
where the record demonstrates that the statutory mandates
have been satisfied, the regulatory provisions likewise are
satisfied.
Review of the claims folder reveals compliance with the
statutory and regulatory provisions sufficient to proceed on
the claim currently before the Board. That is, by way of the
April 2000 and February 2002 rating decisions, a May 2000
statement of the case (SOC), and a February 2002 supplemental
SOC, the RO provided the veteran with the applicable law and
regulations and gave notice as to the evidence generally
needed to substantiate his claim. With respect to the duty
to assist, the Board finds that the evidence of record, which
includes VA treatment records and medical examination
reports, is sufficient to dispose of the issue on appeal.
The Board also notes that veteran has had the opportunity to
submit evidence and argument in support of his appeal. The
Board notes that the RO did not attempt to verify the alleged
stressors, but finds that the veteran did not adequately
identify the names and units of personnel involved to make
verification possible. Since the RO has also provided all
required notice and assistance to the veteran, the Board
finds that there is no prejudice in proceeding with the claim
at this time. Bernard v. Brown, 4 Vet. App. 384, 392-94
(1993).
B. Legal Criteria
Service connection may be established for a disability
resulting from disease or injury incurred in or aggravated by
active service. 38 U.S.C.A. § 1110. To demonstrate a
chronic disease in service, a combination of manifestations
must be shown that is sufficient to identify the disease
entity and there must be sufficient observation to establish
chronicity at the time. 38 C.F.R. § 3.303(b) (2001). If
chronicity in service is not established, a showing of
continuity of symptoms after discharge is required to support
the claim. Id. Service connection may be granted for any
disease diagnosed after discharge, when all of the evidence
establishes that the disease was incurred in service.
38 C.F.R. § 3.303(d).
Service connection for PTSD requires medical evidence
diagnosing the condition in accordance with 38 C.F.R. § 4.125
(which provides for the diagnosis of mental disorder in
accordance with the American Psychiatric Association:
DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS (DSM),
32 (4th ed.) (1994) (DSM IV)); a link, established by medical
evidence, between current symptoms and an in-service
stressor; and credible supporting evidence that the claimed
in-service stressor occurred. If the evidence establishes
that the veteran engaged in combat with the enemy and the
claimed stressor is related to this combat, in the absence of
clear and convincing evidence to the contrary, and provided
that the claimed stressor is consistent with the
circumstances, conditions, or hardships of the veteran's
service, the veteran's lay testimony alone may establish the
occurrence of the claimed in-service stressor. 60 Fed. Reg.
32807-32808 (1999) (codified at 38 C.F.R. § 3.304(f)); see
Moreau v. Brown, 9 Vet. App. 389, 394 (1996).
When, after consideration of all evidence and material of
record in a case before the Department with respect to
benefits under laws administered by the Secretary, there is
an approximate balance of positive and negative evidence
regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the claimant.
38 U.S.C.A. § 5107 (West Supp. 2001); 38 C.F.R. § 3.102
(2001).
C. Evidence
Service personnel records reflect that the veteran served on
active duty during the Vietnam Era, but had no combat
service.
Service medical records indicate that the veteran underwent
an enlistment physical examination in November 1971 and was
found qualified for enlistment. The veteran disclosed that
nervous trouble was a part of his medical history. The
veteran underwent a physical examination in March 1973
pursuant to (AR) Army Regulation 635-200, Chapter 13. The
veteran reported a medical history that included frequent
trouble sleeping, depression or excessive worry, and nervous
trouble. The veteran was deemed qualified for duty and/or
separation.
VA outpatient records show that beginning in January 1981 the
veteran has received psychiatric treatment from the Mental
Health Clinic/Medication Management as frequently as a few
times per week and as infrequently as a few times a year.
Over the course of outpatient treatment, several psychiatric
diagnoses were made.
The veteran was thought to have passive dependent disorder in
January 1981. Chronic or paranoid schizophrenia was the
working diagnoses from December 1982 to 1987. In April 1983
the veteran reported the onset of nightmares about people
attacking him and him being unable to defend himself. In
September 1983 the veteran was also given a diagnosis of
depression with recent new onset of psychotic symptoms
probably secondary to situational stress. At that time he
reported auditory hallucinations that told him to commit
suicide and "ways to get rid of his wife." His other
complaints included marital conflict, irritability, financial
troubles, and unemployment. In addition to individual
therapy, the veteran and his wife engaged in family therapy
on a weekly basis in 1985. The veteran's schizophrenia was
considered stable on medication in January 1986. In April
1987 the veteran's schizophrenia was found to be slightly
worse secondary to headaches and severe psychosocial
stressors. The veteran presented with complaints primarily
psychiatric in nature, on only a few occasions between 1988
and 1991. The diagnoses were polysubstance abuse and
situational stress.
The veteran and his wife attended family therapy on a regular
basis for several months in 1997. The veteran's complaints
included financial problems, problems with his wife and son,
and coping with physical problems. In October 1997 the
veteran complained of a sleeping problem. He reported weird
dreams and waking up swinging if someone touched him. He
described nightmares about accidents and others about
violence and bombings. PTSD was considered as a diagnosis.
In September 1998 the veteran complained of multiple physical
and social/financial problems. He reported having
flashbacks, nightmares, decreased concentration, and stress
from his son. The diagnoses were Axis I: PTSD with anxiety
and Axis II: mixed personality disorder. The Family Mental
Health Clinic referred the veteran to the PTSD Clinic for an
assessment in October 1998. During the evaluation the
veteran relayed stories of trauma that the evaluator thought
might be untruthful. The veteran also spoke about how his
childhood was filled with abuse from his father. He also
discussed many near death experiences. The veteran had
severe burns on his body reportedly from his clothes being
caught on fire. He also reported intrusive thoughts,
hypervigilance, startle response, marked sleep disturbance,
and problems with his son. The examiner concluded that the
veteran met the criteria for PTSD, but found that it was not
related to the military.
Records indicate that the veteran attended three anger
management classes between November and December 1998. He
and his wife had monthly support sessions with the Mental
Health Clinic for several months from late 1998 to mid-1999.
The veteran reported having poor sleep and recurring dreams
of child abuse in June 1999.
VA records revealed numerous psychiatric hospitalizations
beginning in 1978.
The veteran was admitted to the psychiatric ward at Brentwood
VA Medical Center (VAMC) in August 1978. He presented with
complaints of being depressed for several months. He
indicated that he had recently been assaulted with a baseball
bat and had been hospitalized with headache and dizziness as
a result of the assault. He also reported that he had a
recent breakup with his girlfriend and had recently lost his
dog. The veteran was hospitalized for 280 days. He was
given a provisional diagnosis of psychotic depression versus
schizoaffective schizophrenia.
The veteran was admitted to VAMC Brentwood in December 1979.
The medical history indicated that the veteran had a history
of previous neuropsychiatric hospitalizations. The veteran's
current complaints were difficulty in making adjustments to
living in the community because of some interpersonal
relationship difficulties. He reported having poor control
of his behavior when experiencing tension from interaction
with other people. He stated that he was experiencing
depression and anxiety. The veteran was hospitalized 244
days and treated with multiple medications to treat insomnia,
uncontrollable behavior, inability to remember violent
behavior, anxiety, and depression. The psychiatric diagnosis
was depressive neurosis.
After numerous visits to the Admitting Room at VAMC Portland,
the veteran was admitted in January late 1981. He had a
history of being admitted to the Neurosurgery unit for three
days early in January following a motor vehicle accident.
His presenting complaints were head and neck pain and
inability to cope any longer. The veteran was hospitalized
for three days before he left against medical advice. The
diagnosis was post-concussive syndrome; the psychiatric
diagnosis was still uncertain, but thought to possibly be
dependent personality disorder with poor coping skills.
The veteran was admitted in September 1982 for an
exacerbation secondary to family stress. He was discharged
after 44 days. The diagnoses were Axis I: paranoid
schizophrenia and Axis II: atypical personality disorder.
The veteran was admitted to VAMC Tucson in March 1989 with
complaints of depression, anger, and auditory hallucinations.
No psychotic thought process, no auditory hallucinations, and
no anger or belligerence was observed while the veteran was
hospitalized. He had no homicidal or suicidal ideation. The
veteran was discharged after 15 days. His diagnosis was
polysubstance abuse, mixed personality disorder.
In July 1997 the veteran was hospitalized in July 1997 at
VAMC Tucson. He was discharged after 12 days with diagnoses
of Axis I: depression, dysthymia and Axis II: borderline
traits, GAF (Global Assessment of Functioning) 20 at
admission and 70 at discharge.
The veteran underwent several compensation and pension (C&P)
psychiatric evaluations. When evaluated in January 1984, the
veteran disclosed a history of being physically abused by his
father as both a child and as an adult. He reported that the
school bully picked on him especially and fellow servicemen
violently harassed him. He explained that he was victimized
by all these people because of jealousy over his superior
abilities. The veteran stated that following a severe
beating with a baseball bat, from which he nearly died, he
began to hear voices, which have become increasingly worse as
his level of stress has risen. He disclosed experiencing
both suicidal and homicidal ideation, depression on a weekly
basis, having flashbacks of beatings, being laughed at, and
hearing increasingly loud voices. He reported chronic use of
marijuana and occasional use of amphetamines since
adolescence; he reported only one month of abstention, which
resulted in "shakiness." The veteran denied episodes of
mania; he denied delusions and hallucinations other than
those described and evidence of actual grandiosity. The
examiner found the veteran's explanations of why people
always tried to harm him as somewhat grandiose. The examiner
concluded after a mental status examination that the veteran
had the following psychiatric disorders: Axis I: dysthymic
disorder (neurotic depression pre DSM-3); marijuana
dependence, chronic; organic hallucinatory disorder, and Axis
II: atypical personality disorder with mixed traits of
paranoid personality and dependent personality disorders.
The veteran underwent a VA C&P psychiatric examination in
April 1986. The purpose of the examination was to determine
the status of the veteran's impairment level; however, the
examiner noted some confusion over diagnosis of the veteran's
psychiatric disability. After a medical history was taken
and a mental status evaluation was performed, the examining
physician concluded that a diagnosis of a dependent
personality misses the point. The examiner stated, "it is
reasonable speculation that a previously marginal individual
with latent psychotic underpinnings experienced breakthrough
of more severe symptomatology once experiencing an organic
cerebral insult. This is another way of saying that previous
instabilities were simply made worse once brain functioning
was impaired. Thus, a paranoid personality could become a
paranoid psychotic aggravated by a cerebral insult." The
final diagnosis was mixed organic brain syndrome with
features of paranoid psychosis and hallucinosis.
The veteran underwent a VA C&P psychiatric examination in
October 1999. The examiner noted that he reviewed the claims
file and, in particular, psychiatric reports from January
1981 and November 1983. The veteran disclosed that he had
difficulties with anger and insomnia. He stated that he lost
track of his thoughts at times. He reported having
depression and a drinking problem. He disclosed that he got
drunk once a week on average. He stated that he does have
the shakes; he denied delirium tremens and any record of DUI
(driving while intoxicated or impaired). He described no
stressors that might precipitate memories of his time in
service. When asked specifically about his experience in
service, the veteran indicated that he was frequently given
all the untidy types of details, such as KP (kitchen
police/mess hall duty). The veteran did not provide any
stressors that would be due to PTSD. He reported being
physically abused by his father as a child and spending nine
months in jail for theft at age 15. He stated that he
engaged in many fights in high school and did not finish.
The veteran stated that he enjoyed fishing, reading comic
books, and going to swap meets and socializing there. He
reported that he also attends church on Sunday evenings.
The mental status examination showed the veteran oriented to
person, place, and time. His memory was excellent and there
was no indication of cognitive impairment. Affect was
slightly constricted, but his emotional responses were
appropriate and rapport could be established. The veteran
voiced no delusional systems. The examiner noted that the
veteran did not meet the criteria for a diagnosis of PTSD.
The pertinent diagnoses were as follows: Axis I- depressive
disorder not otherwise specified; alcohol dependence, and
Axis II- personality disorder not otherwise specified.
According to the veteran's stressor statement, dated in March
1999, he witnessed a grenade explode and kill another
serviceman and wound others while he was in training at Fort
Lewis. The veteran was detailed to pick up and tag body
parts and clean the field. On another occasion at A.I.T.,
the veteran was detailed to clean up behind a tank training
accident in which there was a casualty. The veteran stated
that he did not remember the names or companies of the
deceased.
The veteran testified at a personal hearing at the RO in
September 2000. He discussed his stressors at Fort Lewis,
Washington, in 1971 (Transcript (T. at pp. 3-5) and his
symptoms, treatment, and diagnosis of PTSD (T. at 5-7, 10-
14).
II. Analysis
A review of the record fails to show that the veteran
incurred PTSD in service or had PTSD prior to service, which
was aggravated by service. The evidence reveals that the
veteran did not engage in combat while on active duty. His
claimed in-service stressors center on events that happened
during training. Although the veteran described traumatic
events, he did not provide sufficient details, such as names
and units of the wounded or deceased, to make verification
possible.
The service connection claim also fails because the veteran
does not have a current diagnosis of PTSD. When last
evaluated in October 1999, he was found not to meet the
diagnostic criteria for PTSD. Moreover, during the
evaluation he neglected to mention any in-service events that
were allegedly traumatic. Rather, he focused on traumatic
events that occurred in his childhood and events occurring
after he left service. This is consistent both with the
outpatient treatment records as a whole and the veteran's
October 1998 PTSD assessment. In this regard, the Board
notes that there is only one reference to the in-service
training incidents in the veteran's medical records in the
span of 20 years which encompassed multiple psychiatric
hospitalizations and continuous outpatient treatment. The
reference was made in September 1998, coincidentally, the
same month that the veteran filed for service connection for
PTSD. The Board further notes that the veteran's former
diagnosis of PTSD was determined to be non-military related.
Thus, even if the diagnosis was current, the medical evidence
does not demonstrate a link with service. The Board must
conclude that the medical evidence in this case is
controlling and is simply overwhelmingly against the claim.
In such circumstances, the benefit of the doubt doctrine is
not for application.
ORDER
Entitlement to service connection for post-traumatic stress
disorder is denied.
V. L. Jordan
Member, Board of Veterans' Appeals
IMPORTANT NOTICE: We have attached a VA Form 4597 that tells
you what steps you can take if you disagree with our
decision. We are in the process of updating the form to
reflect changes in the law effective on December 27, 2001.
See the Veterans Education and Benefits Expansion Act of
2001, Pub. L. No. 107-103, 115 Stat. 976 (2001). In the
meanwhile, please note these important corrections to the
advice in the form:
? These changes apply to the section entitled "Appeal to
the United States Court of Appeals for Veterans
Claims." (1) A "Notice of Disagreement filed on or
after November 18, 1988" is no longer required to
appeal to the Court. (2) You are no longer required to
file a copy of your Notice of Appeal with VA's General
Counsel.
? In the section entitled "Representation before VA,"
filing a "Notice of Disagreement with respect to the
claim on or after November 18, 1988" is no longer a
condition for an attorney-at-law or a VA accredited
agent to charge you a fee for representing you.